TERMS OF USE
Last Revised: December 5, 2022
1. ACCEPTANCE OF TERMS
Anthem IQ, Inc. (“AnthemIQ”) offers a digital transaction platform for the commercial real estate industry through access to and use of its proprietary online platform accessible from the website and associated domains of https://www.anthemiq.com, as may be updated from time-to-time, including any successor websites and domains, and all services encompassed therein or associated therewith (collectively, the “Platform”). Any access to or use of the Platform is subject to the terms and conditions in these Terms of Use (the “TOU”). AnthemIQ may, at its discretion, update the TOU at any time in accordance herewith. You can access and review the most current version of the TOU at the URL for this page or by clicking on the “Terms of Use” link within the Platform or as otherwise made available by AnthemIQ.
BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE PLATFORM, YOU AGREE TO BE BOUND BY THE TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU ARE UTILIZING THE PLATFORM ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU DO HEREBY BIND SUCH ENTITY TO THE TOU AND ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE TOU, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY AND ALL USERS ACCESSING THE PLATFORM THROUGH SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE TOU, YOU SHALL NOT ACCESS OR USE THE PLATFORM.
THE TOU REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TOU OR YOUR ACCESS TO OR USE OF THE PLATFORM, INCLUDING THE VALIDITY, APPLICABILITY, OR INTERPRETATION OF THE TOU (EACH, A “CLAIM”), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION, ARBITRATION, OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 20 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
By using the Platform, you represent, warrant, and covenant that you are: (i) over eighteen (18) years of age or the age of majority in your jurisdiction, whichever is greater; (ii) of legal age to form a binding contract; (iii) located in, and will only use the Platform within, the United States; and (iv) not a person barred from using the Platform hereunder, under the laws of the United States, or under the laws of your country of residence or any other applicable jurisdiction.
2. OTHER AGREEMENTS
If you are accessing or using the Platform through your affiliation with a real estate brokerage or agency, then your access and use may be subject to an agreement between AnthemIQ and such brokerage or agency (each a “Platform Agreement”). Your access to and use of the Platform is subject to, and you agree to be bound by, the AnthemIQ Privacy Policy, any usage or other policies relating to the Platform posted or otherwise made available to you by AnthemIQ, and the applicable Platform Agreement (if any) (collectively, “Additional Terms”). The Additional Terms constitute part of the TOU, are hereby incorporated by reference into the TOU, and any reference herein to the TOU will be deemed to automatically include any applicable Additional Terms.
3. GRANT OF RIGHTS
(a) AnthemIQ grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable, limited license to access and view pages within the Platform, in accordance with the TOU.
(b) To the extent that the Platform provides access to any online software, applications, or other similar components, AnthemIQ grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use such components only within the Platform and only in the form found within the Platform, in accordance with the TOU.
(c) All rights granted to you under the TOU are subject to and conditioned upon your compliance with the TOU and may only be exercised by you for your internal business purposes.
4. ROLE OF ANTHEMIQ
AnthemIQ does not (i) act as a real estate agent for you or any other party, (ii) sell, buy, or negotiate the purchase, sale, or exchange of real property, or (iii) lease or rent, offer to lease or rent, or negotiate the lease of real property or otherwise aid or assist in the lease of real property.
5. THIRD PARTY SOFTWARE
Some components of the Platform may be provided with or have incorporated into them third-party software (“Third-Party Software”), which may include software licensed under “open source” or other licenses approved by the Open Source Initiative. AnthemIQ is not the author or owner of Third-Party Software, and the TOU does not govern access to, or use of, Third-Party Software. You acknowledge and agree that (i) AnthemIQ has no proprietary interest in any Third-Party Software, (ii) to the extent permitted by applicable law and notwithstanding anything to the contrary in the TOU, any Third-Party Software is provided “AS IS” with all faults, and neither the licensor of such Third-Party Software nor AnthemIQ shall be liable for any direct, indirect, incidental, or consequential damages related to such Third-Party Software or the use thereof, and (iii) such Third-Party Software may be subject to separate license restrictions and obligations set forth in the respective license agreements related to such software.
6. SUPPORT
Except as explicitly agreed by AnthemIQ in any applicable Additional Terms, AnthemIQ is not obligated to provide you any support for the Platform, and the TOU does not entitle you to any support for the Platform.
7. PERSONAL INFORMATION; REGISTRATION; ACCOUNT
(a) You acknowledge and agree that by accessing or using the Platform, AnthemIQ may receive certain information about you, including personal information, and AnthemIQ may collect, use, disclose, store, and process such information in accordance with the AnthemIQ Privacy Policy and the terms of a Platform Agreement.
(b) With respect to information that you provide or for which you provide access to AnthemIQ, or information that AnthemIQ creates or obtains on behalf of you, on or through the Platform, that directly or indirectly identifies an individual or can be used to identify or authenticate an individual (the foregoing, “Personal Information”), you shall (i) comply with the terms and conditions of the TOU, (ii) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under your control or in your possession, (iii) comply with any applicable laws and regulations and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Personal Information to AnthemIQ, and (iv) provide written notice to AnthemIQ if any information your provide to AnthemIQ on or through the Platform contains Personal Information, it being understood that AnthemIQ will not be responsible for determining on its own that any information you provide on or through the Platform qualifies as Personal Information.
(c) AnthemIQ may enable you to access and browse the Platform without registering, but some features may not be accessible unless you register. In registering for the Platform, you agree to: (i) provide true, accurate, current, and complete information about yourself as prompted by the Platform’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or AnthemIQ reasonably suspects that you have done so, AnthemIQ may suspend or terminate your account.
(d) You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account, whether or not you authorized the particular use or user, and regardless of your knowledge of such use. You agree to notify AnthemIQ immediately of any unauthorized use of your account or password or any other similar breach of security. You acknowledge that AnthemIQ is not responsible for any losses, damages, costs, expenses, or claims that result from stolen or lost passwords. You shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of all accounts and passwords and protect against any unauthorized access to or use of the Platform; and (ii) control the content and use of Your Content (as defined below), including the uploading or other provision of Your Content for processing by the Platform.
(e) If your account remains inactive for one year or longer, AnthemIQ reserves the right to suspend or terminate your account, with or without notice to you, and delete Your Content, all without liability to you.
8. RESPONSIBILITY FOR CONTENT
(a) You acknowledge and agree that all information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags, and other materials accessible through the Platform, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not AnthemIQ, are entirely responsible for all Content that you upload, post, email, transmit, or otherwise make available on or through the Platform (“Your Content”), and other users of the Platform, and not AnthemIQ, are similarly responsible for all Content they upload, post, email, transmit, or otherwise make available on or through the Platform (“User Content”).
(b) You acknowledge and agree that AnthemIQ has no obligation to pre-screen Content (including Your Content and User Content), although AnthemIQ reserves the right in its sole discretion to pre-screen, refuse, or remove any such Content. Without limiting the generality of the foregoing sentence, AnthemIQ shall have the right to remove any Content (including Your Content and User Content) that violates the TOU.
(c) You acknowledge and agree that AnthemIQ has no obligation to back up Your Content, and that you are solely responsible for backing up Your Content. You acknowledge and agree that you may not have access to Your Content through AnthemIQ or the Platform following the expiration of your subscription or termination of your access to the Platform.
(d) Without limiting the generality of Section 16 or any other provision of the TOU, you understand that errors present in Your Content will be present in any calculations relying on Your Content, and AnthemIQ makes no warranty or representation whatsoever regarding the accuracy or completeness of calculations or other results provided through the Platform, regardless of the accuracy or completeness of Your Content. It is your sole and complete responsibility to make correct use of the Platform and to verify the accuracy and completeness of Your Content and any other calculations, data, or other materials you obtain through the Platform, regardless of the accuracy or completeness of Your Content.
(e) To the extent that you submit any Content, you represent and warrant that (i) you have all necessary right and authority to grant the rights set forth in the TOU with respect to Your Content, and (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity, or any other right of any other party.
9. RIGHTS TO CONTENT
(a) AnthemIQ does not claim ownership of Your Content. However, you grant AnthemIQ and its service providers a worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, and have made Your Content (in any form and any medium, whether now known or later developed) as necessary or convenient, as determined by AnthemIQ, to (i) provide access to the Platform to you and other users (including any maintenance, calibration, diagnostic, and troubleshooting), and (ii) monitor and improve the Platform. To the extent you have made Your Content accessible to others through the Platform, you acknowledge and agree that AnthemIQ may continue to make Your Content accessible to others through the Platform even after you have deleted your user account or the applicable portion of Your Content from your user account.
(b) You acknowledge and agree that AnthemIQ may collect or generate Aggregate Data (as defined below) in connection with providing you with access to the Platform, and you hereby grant AnthemIQ and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, and have made Aggregate Data for any lawful purpose. “Aggregate Data” means Your Content that has been aggregated in a manner that does not reveal any Personal Information about you or your affiliated business associates and cannot reasonably be used identify you or your affiliated business associates as the source of such data.
(c) Except with respect to Your Content, you acknowledge and agree that, as between you and AnthemIQ, AnthemIQ owns all rights, title, and interest (including all intellectual property rights) in the Platform, and all improvements, enhancements, or modifications thereto, including all Content and other materials therein. The Platform is protected by U.S. and international copyright, trademark, patent, and other intellectual property laws and treaties. AnthemIQ reserves all rights not expressly granted to you in the TOU.
(d) Except with respect to Your Content and subject to the limited rights expressly granted to you in Section 3, you shall not: (i) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer, or otherwise grant rights to the Platform; (ii) reverse engineer, disassemble, decompile, or translate, or otherwise attempt to derive the source code, architectural framework, or data records of any software within or associated with the Platform; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the Platform for the purpose of developing, marketing, selling, or distributing any product or service that competes with or includes features substantially similar to the Platform or any products or services offered by AnthemIQ; (v) rent, lease, lend, sell, or sublicense the Platform or otherwise provide access to the Platform as part of a service bureau or similar fee-for-service purpose; (vi) remove or obscure any proprietary notice that appears within the Platform; or (vii) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
10. USER CONDUCT
In connection with your access to or use of the Platform, you shall not:
(a) upload, post, email, transmit, or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or otherwise objectionable; (ii) may not be made available under a law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation; (v) contains software viruses or any other code, files, or programs designed to interrupt, destroy, or limit the functionality of any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate.
(b) impersonate any person or entity, including AnthemIQ personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Platform;
(d) act in a manner that negatively affects the ability of other users to access or use the Platform;
(e) take any action that imposes an unreasonable or disproportionately heavy load on the Platform or its infrastructure;
(f) interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies, or regulations of networks connected to the Platform;
(g) use spiders, crawlers, robots, scrapers, automated tools, or any other similar means to access the Platform, or substantially download, reproduce, or archive any portion of the Platform;
(h) sell, share, transfer, trade, loan, or exploit for any commercial purpose any portion of the Platform, including your user account and password;
(i) copy, modify, or create derivative works or improvements to the Platform or its source code or object code;
(j) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part;
(k) bypass or breach any security device or protection used by the Platform or access or use the Platform other than as authorized herein;
(l) remove, delete, alter, or obscure any trademarks, end user license agreement, warranties, disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices relating to the Platform, including any copy thereof;
(m) access or use the Platform for purposes of competitive analysis of the Platform, the development, provision, or use of a competing software service or product, or any other purpose that is to AnthemIQ’s detriment or commercial disadvantage;
(n) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any portion of the Platform to any person, except as expressly authorized in the TOU;
(o) violate any applicable local, state, provincial, federal, or international law or regulation; or
(p) otherwise access or use the Platform beyond the scope of the authorization granted in the TOU.
11. FEES
You are solely responsible for any data, usage and other charges assessed by mobile, cable, internet, or other communications service providers for your access to and use of the Platform. Some features of the Platform are free to use, but fees may apply for premium features and other components. If there is a fee listed for any portion of the Platform, by accessing or using that portion, you agree to pay the fee. Your access to the Platform may be suspended or terminated if you do not make payment on time or if you don’t make payment in full. If you sign up for a subscription, your subscription will automatically renew at the conclusion of the then-current term unless you or AnthemIQ provides notice to the other of your or its intent not to renew not less than sixty (60) days before the end of the then-current term. Unless otherwise explicitly set forth in the applicable ordering documentation, all subscriptions are made on a yearly basis (including any renewals). Users added during the middle of a subscription term will be billed a pro-rated amount for access to the Platform through the end of the then-current subscription term. All amounts payable herewith shall be paid by you in full without setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason. AnthemIQ may increase its fees by providing notice to you, whether by electronic mail, by posting a notice on the Platform, or any other legal method, at least sixty (60) days prior to the expiration of the current term with respect to the upcoming term, and by accessing the Platform during such subsequent term, you hereby agree to such increased fees.
Taxes. In addition to the aforementioned License (Subscription) Fee, Client shall be charged taxes, however designated and of whatever nature, including all applicable sales, use, and other taxes, duties or surcharges, whether international, national, state or local that are levied or imposed by reason of this transaction.
12. SUGGESTIONS
If you elect to provide or make available to AnthemIQ any suggestions, comments, ideas, improvements, or other feedback relating to the Platform (“Suggestions”), you hereby grant AnthemIQ a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer, or otherwise grant rights in your Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
13. DEALINGS WITH THIRD PARTIES
(a) The Platform or users of the Platform may provide links or other connections to other websites or resources. You acknowledge and agree that AnthemIQ does not endorse and is not responsible for any content, advertising, products, services, or other materials on or available through such sites or resources (“External Materials”). External Materials are subject to different terms of use and privacy policies. You are responsible for reviewing and complying with such terms of use and privacy policies. You further acknowledge and agree that AnthemIQ shall not be liable for any damage or loss resulting from or arising out of use of or reliance on any External Materials.
(b) Your dealings with advertisers and other third parties who market, sell, buy, or offer to sell or buy any property or services on the Platform, including payment for and delivery of such goods or services and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and the advertiser or other third party. You agree that AnthemIQ shall not be liable for any damage or loss of any kind incurred as a result of any such dealings.
14. MODIFICATIONS TO THE PLATFORM
Subject to any Additional Terms, AnthemIQ reserves the right to modify, suspend, or discontinue the Platform or any product or service to which it connects, with or without notice, and AnthemIQ shall not be liable to you or to any third party for any such modification, suspension, or discontinuance. AnthemIQ may at its sole discretion from time to time, but is not obligated to, develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance of the Platform or related services (“Updates”). AnthemIQ may develop Updates that require installation by you before you continue to access or use the Platform or related services. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system. Further, AnthemIQ may, directly or indirectly, including by use of any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by AnthemIQ or its designee to disable your access to or use of the Platform (the foregoing, a “Disabling Device”) or any other lawful means, suspend, terminate, or otherwise deny your access to or use of any or all of the Platform, in its sole and absolute discretion, without incurring any resulting obligation or liability if: (a) AnthemIQ receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires AnthemIQ to do so; or (b) AnthemIQ believes, in its sole discretion, that: (i) you or any user accessing the Platform through you has failed to comply with any term of TOU, or accessed or used the Platform beyond the scope of the rights granted or for a purpose not authorized under the TOU or in any manner that does not comply with any instruction or requirement of the TOU; (ii) you or any user accessing the Platform through you is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) your subscription expires or is terminated. This Section 14 does not limit any of AnthemIQ’s other rights or remedies, whether at law, in equity, or under the TOU. By accessing the Platform, you acknowledge and agree that AnthemIQ may utilize such Disabling Devices, and you will not challenge or object to the use thereof in accordance with this Section 14.
15. INDEMNIFICATION
You shall indemnify, defend, and hold AnthemIQ and its affiliates, and each of their members, managers, officers, directors, shareholders, employees, agents, partners, licensors, agents, representatives, successors, and assigns (collectively, “AnthemIQ Parties”) harmless from and against any claim, demand, loss, damage, cost, liability, and expense, including reasonable attorneys’ fees, resulting from or arising out of: (a) Your Content; (b) your violation of the TOU, any law or regulation, or any rights (including intellectual property rights) of another party; (c) your use of the Platform; (d) negligence or more culpable act or omission (including gross negligence, recklessness, or willful misconduct) by you or any third party accessing the Platform by or through you; or (e) your failure to pay and deliver to AnthemIQ any fees hereunder within the required time frames therefor. INDEMNIFIED CLAIMS INCLUDE, WITHOUT LIMITATION, CLAIMS ARISING OUT OF OR RELATED TO ANTHEMIQ’S NEGLIGENCE. Your obligations set forth in this Section 15 include, without limitation: (i) settlement at your expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys’ fees incurred before your assumption of the defense (but not attorneys’ fees incurred thereafter). If you fail to assume the defense on time to avoid prejudicing the defense, AnthemIQ may defend the indemnified claim, without loss of rights pursuant to this Section 15. AnthemIQ will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subject it to any ongoing affirmative obligation.
16. DISCLAIMER OF WARRANTIES
(a) YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANTHEMIQ EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
(b) ANTHEMIQ MAKES NO WARRANTY OR REPRESENTATION THAT: (i) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (iii) THE INFORMATION, CALCULATIONS, AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE PLATFORM WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.
(c) ALL CONTENT MADE AVAILABLE THROUGH THE PLATFORM IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY AND COMPLETENESS OF ALL INFORMATION BEFORE TAKING OR OMITTING ANY ACTION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ARE SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL DATA AND RESULTS SUBMITTED TO OR OBTAINED FROM THE PLATFORM BEFORE TAKING ANY ACTION BASED UPON SUCH DATA OR RESULTS, INCLUDING MAKING ANY PAYMENTS OR COLLECTING ANY AMOUNTS BASED THEREON.
17. LIMITATION OF LIABILITY
(a) NEITHER ANTHEMIQ, ITS AFFILIATES, MEMBERS, MANAGERS, CONTRACTORS, SUPPLIERS, EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, PARTNERS, REPRESENTATIVES, AGENTS, SUCCESSORS, OR ASSIGNS WILL BE LIABLE FOR, AND THE FOREGOING PARTIES EXPRESSLY DISCLAIM, AND YOU HEREBY WAIVE, ANY LOST PROFITS OR COST OF COVER, OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF ANTHEMIQ HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, LOSS OF GOODWILL, LOSS OF OR DAMAGE TO PROPERTY, LOSS OF USE, BUSINESS INTERRUPTION, OR CLAIMS OF THIRD PARTIES), REGARDLESS OF WHETHER ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE. IN NO EVENT SHALL ANTHEMIQ’S TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOU OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE PLATFORM EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO ANTHEMIQ FOR ACCESS TO THE PLATFORM WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE. THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(b) CERTAIN STATE LAWS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
18. TERMINATION
(a) Subject to the Additional Terms, if you violate the TOU, all rights granted to you under the TOU shall terminate immediately, with or without notice to you. If you are accessing or using the Platform through your affiliation with a real estate brokerage or agency and the applicable Platform Agreement covering such access and use terminates, then your access to the Platform and the TOU also terminates. You may terminate any Platform Agreement as provided in Section 11 above, unless otherwise provided in the applicable Platform Agreement. Termination of a Platform Agreement will entitle you to, if anything, only a refund of any pre-paid, but unused, Platform fees, as determined by AnthemIQ in its sole discretion.
(b) The TOU will continue in effect unless and until terminated or discontinued as provided in the TOU, including, without limitation, Section 11.
(c) Upon termination of the TOU for any reason: (i) you must immediately cease using the Platform; (ii) AnthemIQ, in its sole discretion, may remove and discard Your Content and delete your user account; (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOU shall survive such expiration or termination; and (iv) all rights granted to you under the TOU shall immediately terminate, but all other provisions shall survive termination, including, without limitation, Sections 1, 2, 5-17, 18(c), 19-28 hereof.
19. GOVERNING LAW
The TOU shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOU.
20. CONFIDENTIALITY
(a) Proprietary Information. AnthemIQ may disclose certain information it considers confidential and/or proprietary to you, whether directly or by your access to or use of the Platform, whether before, during, or after the term hereof, including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as (i) trade secrets, (ii) financial information, (iii) technical information, (iv) business information, and (v) information acquired by you through use of the Platform (all of the foregoing collectively defined as “Proprietary Information”).
(b) Non-Use and Non-Disclosure. You and any users accessing the Platform through you shall use and possess Proprietary Information only in strict compliance with the TOU. You shall, and shall cause any users accessing the Platform through you to, use the same degree of care, but no less than a reasonable degree of care, as you use with respect to your own information of a similar nature to protect the Proprietary Information and to prevent (i) any use of Proprietary Information in violation of the TOU, and/or (ii) communication of Proprietary Information to any unauthorized parties. You shall, and shall cause any users accessing the Platform through you to, keep such Proprietary Information confidential during the term hereof and for a period of five (5) years following the termination or expiration of the term hereof, and shall not disclose such Proprietary Information, in whole or in part, to any person; provided, however, you acknowledge and agree that all confidentiality duties related to trade secrets herein shall not expire.
(c) Exceptions. The TOU imposes no obligation upon you with respect to Proprietary Information that (i) is or becomes publicly available through no fault of yours, (ii) is rightfully received by you from a third party without a duty of confidentiality owed to AnthemIQ, (iii) is independently developed by you without breach of the TOU or use of the Platform, (iv) is disclosed by you with AnthemIQ’s prior written approval, or (v) is required to be disclosed by operation of law, court order, or other governmental demand (a “Required Disclosure”), provided that (A) you shall promptly and immediately notify AnthemIQ of such Required Disclosure, and (B) such Party shall not produce or disclose Proprietary Information in response to such Required Disclosure unless AnthemIQ has (1) requested protection from the legal or governmental authority requiring the Required Disclosure and such request has been denied, (2) consented in writing to the production or disclosure of the Proprietary Information in response to the Required Disclosure, or (3) taken no action to protect its interest in the Proprietary Information within twenty-one (21) business days after receipt of notice of its obligation to produce or disclose Proprietary Information in response to the Required Disclosure.
21. BINDING ARBITRATION AND CLASS ACTION WAIVER
ALL CLAIMS (AS DEFINED IN SECTION 1) SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS AGREEMENT AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000 OR SUCH LESSER AMOUNT AS IS APPLICABLE) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
The arbitration shall be conducted by the American Arbitration Association (“AAA”) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules may be available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any Claims. Payment of all filing, administration, and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
YOU AND ANTHEMIQ EACH AGREE THAT ALL CLAIMS (AS DEFINED IN SECTION 1) SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION, ARBITRATION, OR OTHER SIMILAR PROCESS AND EXPRESSLY WAIVE ANY RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTION 21 REQUIRING BINDING ARBITRATION SHALL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU AND ANTHEMIQ EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS, OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
Notwithstanding anything to the contrary, you and AnthemIQ may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect your or its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 21.
If AnthemIQ implements any material change to this Section 21, such change shall not apply to any Claim for which you provided written notice to AnthemIQ before the implementation of the change.
22. LEGAL COMPLIANCE
You represent and warrant each of the following: (a) you are not located in a country that is subject to a U.S. Government embargo or designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
23. U.S. GOVERNMENT ENTITIES
This Section 23 applies to access to or use of the Platform by a branch or agency of the United States Government. The Platform includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in the TOU with respect to such items, and any access to or use of the Platform by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this Section 23; and (ii) acceptance of the rights and obligations herein.
24. NO THIRD-PARTY BENEFICIARIES
You agree that, except for AnthemIQ Parties and as otherwise expressly provided in the TOU, there shall be no third-party beneficiaries to the TOU.
25. REPORTING CLAIMS OF COPYRIGHT INFRINGEMENT
AnthemIQ takes claims of copyright infringement seriously. AnthemIQ will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Platform infringe your copyright, you may request removal of those materials (or access to them) from the Platform by submitting written notification to AnthemIQ’s copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:
· Your physical or electronic signature.
· Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Platform, a representative list of such works.
· Identification of the material you believe to be infringing in a sufficiently precise manner to allow AnthemIQ to locate that material.
· Adequate information by which AnthemIQ can contact you (including your name, postal address, telephone number, and, if available, email address).
· A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
· A statement that the information in the written notice is accurate.
· A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
AnthemIQ’s designated copyright agent to receive DMCA Notices is:
AnthemIQ DMCA Agent
901 W 9th St, Suite 110
Austin, TX 78703
dmca@anthemiq.com
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.
Please be aware that if you knowingly materially misrepresent that material or activity on the Platform is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
26. COUNTER NOTIFICATION PROCEDURES
If you believe that material you posted on the Platform was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with AnthemIQ (a “Counter Notice”) by submitting written notification to AnthemIQ’s copyright agent designated above. Pursuant to the DMCA, the Counter Notice must include substantially the following:
· Your physical or electronic signature.
· An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
· Adequate information by which AnthemIQ can contact you (including your name, postal address, telephone number, and, if available, email address).
· A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
· A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located and that you will accept service from the person (or an agent of that person) who provided the Platform with the complaint at issue.
The DMCA allows AnthemIQ to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten (10) business days of receiving the copy of your Counter Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Platform was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
27. REPEAT INFRINGERS
It is AnthemIQ’s policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers, whether through a Disabling Device or otherwise.
28. GENERAL PROVISIONS
The TOU (together with applicable Additional Terms) constitutes the entire agreement between you and AnthemIQ concerning your access to and use of the Platform and supersedes all prior and contemporaneous oral or written negotiations and agreements between you and AnthemIQ with respect to such subject matter. In the event of any conflict between or among the TOU and any Additional Terms to which the TOU refers, the terms and conditions of the TOU shall take precedence and govern; provided, however, notwithstanding the foregoing, in the event of any conflict between the TOU and any Platform Agreement, the Platform Agreement will take precedence and govern. The TOU may not be amended by you, but may be amended by AnthemIQ in accordance with the TOU. For the purposes of the TOU, the words “such as,” “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under the TOU without the prior written consent of AnthemIQ, and any such assignment, delegation, or transfer without such consent will be void ab initio. The failure of AnthemIQ to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision. If any provision of the TOU is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified, or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOU. Any prevention of or delay in performance by AnthemIQ hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, pandemic, epidemic, fire, or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.